“Managerial Capacity” means an assignment within an organization in which the employee primarily:

(1) Manages the organization, or a department, subdivision, function, or component of the organization.

(2) Supervises and controls the work of the other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization.

(3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization ) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed.

(4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

“Executive Capacity” means an assignment within an organization in which the employee primarily:

(1) Directs the management of the organization or a major component or function of the organization.

(2) Establishes the goals and policies of the organization, component, or function.

(3) Exercises wide latitude in discretionary decision-making, and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

“Specialized Knowledge” means knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

“Specialized Knowledge Professional” means an individual who has specialized knowledge and is a professional, as that term was construed in third preference (immigrant) or H-1B (nonimmigrant) visa petitions (i.e. where the applicant possesses at least a bachelors degree or equivalent in specific field, and the degree is normally required for the position held).

The capacity in which the applicant has been employed abroad may be different from his proposed position in the U.S. For example, an applicant who has been employed abroad as an engineer with specialized knowledge may be coming to assume a managerial position in the U.S.

Additional Requirements for a “New Office”

When a new U.S. office is involved, as in this case, the petition must also be accompanied by evidence of the following:

A copy of a lease or other evidence that physical premises have been obtained for the office;

Payroll records evidencing employment abroad for past year

Evidence that the new office will be able to sustain a manager transferee for the one year period of approval as allowable for start-up L petitions, through submission of a statement by the employer including –

The proposed nature of the office, describing the scope of the entity, its organizational structure, and its financial goals. Basically, a business plan for the next several years should be discussed, including US hiring intent in terms of numbers and types of positions to be filled.

The size of the US investment and the financial ability of the foreign entity to remunerate the transferee and to commence doing business in the U.S. Balance sheets or other financial information from the foreign company would be advisable. Copies of bank statements showing money transfers to US to support the new office would be advisable, as well, if available.

The organizational structure of the foreign office.

Confirmation that the company will remain in operation during the full period of the alien’s transfer, through evidence of the size and length of existence of the foreign company, and such other evidence as ongoing contracts for provision of goods or services and provision for management of the foreign operation while the alien is transferred, particularly when the alien is a principal of the foreign company.

Petition Procedure

In order to obtain L-1 status for a prospective intracompany transferee, the U.S. employer must file a petition with one of two National Service Centers of the USCIS having jurisdiction over the area where the applicant will be employed. The petition must be accompanied by sufficient evidence of the corporate interrelationship with the overseas employer, as well as a statement detailing the employment history of the applicant and the nature of his position in the U.S.

An L-1 petition may be approved for an initial period of up to three years (but only for an initial one year in the case of a “new office”). There is a five year limit on stay for a specialized knowledge applicant; the limit is seven years for a manager or executive.

Premium Processing

CIS now offers “Premium Processing” for an optional, additional filing fee of $1,225.00. This guarantees review of a case within 15 days of filing. Prudent employers should carefully assess whether the circumstances of the case dictate that payment of the additional fee is warranted.

Visa Application Procedures

Upon visa petition approval, notice is sent to the employer and a copy of the approved petition is sent to a processing center in the U.S. where a U.S. Consulate abroad will request confirmation when the applicant applies for his L-1 visa to enter the U.S. Visa issuance can take anywhere from days to months, depending on security clearance issues and local consulate processing procedures.

After visa petition approval, the applicant may apply for his L-1 visa. To do so, he must schedule an appointment with a U.S. consulate abroad via the U.S. State Dept. website. Information is provided at that time for completion of the nonimmigrant visa application and submission of photographs prior to interview. Information regarding payment of processing fees and any other fees required is given at that time. It is always advisable for the applicant to obtain information specific to the U.S. consulate through which they will be applying in advance.

While visa issuance is generally a routine process, it is important to remember that U.S. Consular Officers may decline to issue the visa for a variety of reasons. The applicant must meet the general requirements for entry to the U.S. (no criminal record, prior visa problems, etc.). However, since the implementation of the Immigration Act of 1990, it is no longer relevant whether an L-1 visa applicant has previously applied for, or is currently in the process of obtaining, Lawful Permanent Resident status. This is a significant change from prior practice, when L-1 visa applicants could be refused entry if the Consular Officer knew or suspected that he intended to remain in the U.S. permanently.

The spouse and child of an L-1 visa holder will obtain L-2 visas as dependents. They will be permitted to enter and remain in the U.S. as long as the principal applicant. L-2 visa holders (spouses only) may apply for an employment authorization document from CIS after entry to the U.S. in L-2 visa status and may thereafter engage in any kind of employment in the U.S. Processing of the employment authorization document can take up to 90 days.

Canadian citizens do not need a visa. Instead, the applicant simply presents the original L-1 approval notice at a U.S. port of entry, together with proof of citizenship.

If the applicant is already in the U.S. in a different nonimmigrant category, it may be possible to change his status by filing a separate application in addition to the employer’s preliminary petition. The change of status remains in effect until the applicant’s next departure from the U.S., at which time he must apply for an L-1 entry visa at a U.S. Consulate, as above.